Grounds for divorce & no fault divorce

March 28, 2016

Brooklyn Court Rules on Divorce with One Spouse in Prison for Assaulting the Other

by Ingrid Gherman

Photo Credit: Normana Karia / Shutterstock.com

A person seeking a divorce anywhere in the United States in 2016 is no longer required to prove wrongdoing by the other spouse. In 1970, California enacted the nation’s first “no fault” divorce statute, which allows a spouse to bring a cause of action for divorce based on “irreconcilable differences.” New York was the last state to authorize no-fault divorce, on the ground that “[t]he relationship between husband and wife has broken down irretrievably for a period of at least six months,” in 2010. Many states now only allow no-fault divorce, but New York is among the states that still allow fault-based claims for divorce, such as “cruel and inhuman treatment,” abandonment, and adultery. This can play a role in multiple aspects of a New York divorce, as a Brooklyn court noted in a December 2015 decision, Alice M. v. Terrance T. The court went so far as to describe it as a perfect example of “egregious conduct by one spouse against another spouse.”

The two main issues in the Alice M. case were the equitable division of marital property and a claim for spousal maintenance. Under New York law, most property acquired during a marriage is deemed marital property. Section 236(B)(5) of the New York Domestic Relations Law (DRL) establishes procedures for the equitable distribution of marital property, based on factors like the age and health of the parties, each party’s income, equitable claims or waste by one spouse, or other factors that the court “expressly find[s] to be just and proper.” The court in Alice M. noted that, based on a precedent case, “marital fault is not…‘a just and proper’ consideration in determining equitable distribution of marital property.”

Spousal maintenance, sometimes still known as alimony, is governed by § 236(B)(6) of the DRL. The court may order an amount to be paid by one spouse to the other, based on economic factors like whether child support is to be paid and in what amount, the payor’s ability to pay, and the payee’s needs; and on fault-based factors like waste of marital property and acts of domestic violence by one spouse against another.

March 14, 2016

New York Court Rules Against Husband’s Voluntary Discontinuance of Divorce Case

by Ingrid Gherman

Photo Credit: Andrey_Popov / Shutterstock.com

Obtaining a divorce in New York City requires filing a lawsuit, of sorts, and obtaining a judge’s approval on a final judgment. Even if the parties are able to agree the terms of the divorce, the judge must sign a final judgment. Parties to a divorce may choose to reconcile, and therefore to discontinue the court proceeding. New York law and court rules set certain limits, however, on when a plaintiff can discontinue a divorce suit without the court’s permission. A Manhattan court recently considered a husband’s effort to unilaterally discontinue a divorce case in Marcilio v. Hennessy, ruling that his notice was untimely and barred by equitable principles.

Divorce cases in New York may proceed in much the same way as other lawsuits. One of the spouses, as plaintiff, files a complaint with the Supreme Court of their county. The plaintiff must provide notice to the other party, i.e. their spouse. In many divorce cases, the plaintiff does not formally serve their spouse with papers, in the interest of maintaining a relatively civil atmosphere.

New York recently enacted a “no-fault” divorce law, meaning that a plaintiff in a divorce case is no longer required to allege fault in the breakdown of the marriage. This has, at least somewhat, helped keep more amicable divorce cases from becoming contentious. It also allows parties to focus on resolving issues like property division and child support. Once this process is underway, New York court rules set limits on when a plaintiff can discontinue a case.
Continue reading

March 4, 2016

Residency Requirements for a New York Divorce

by Ingrid Gherman

Photo Credit: itakdalee / Shutterstock.com

In order to file for divorce in New York, a person must establish that they, their spouse, or the circumstances of the divorce meet the state’s residency requirements. Section 230 of New York’s Domestic Relations Law identifies five scenarios in which a person may file for divorce in this state, usually based on where one or both parties reside. In some circumstances, a New York court may hear a divorce case, with a much reduced residency requirement, if a cause of action related to the divorce occurred within the state. A Manhattan court considered a claim last year in Stancil v. Stancil that “the irretrievable breakdown of the marriage,” the condition for a “no-fault” divorce, occurred in this state, even if the parties did not otherwise meet the residency requirements. The court disagreed.

The issue of residency is based on the legal doctrine of personal jurisdiction, a court’s authority to exercise power over a party. The legal issues surrounding personal jurisdiction are quite complex, but a simple way to summarize them is to say that a court cannot exercise personal jurisdiction over someone who has no connection to the state in which the court sits. A person attempting to sue a resident of Hawaii in a New York court, for example, must be able to show some connection to New York. The type of connection depends on the type of case.

June 16, 2015

New York Lawsuit Claims Damages for Defendant’s Failure to Get a Divorce

by Ingrid Gherman

Photo Credit: Elnur / Shutterstock.com

An unusual lawsuit filed in state court in Manhattan claims that the defendant harmed the plaintiff by not getting a divorce. The parties were allegedly involved in a romantic relationship for several years, although the defendant was still married to someone else. The plaintiff is seeking reimbursement for time spent as the defendant’s “glorified gofer,” as the New York Post puts it. The lawsuit is somewhat reminiscent of cases in which a person claims compensation or support from a former romantic partner, in the absence of a marriage relationship. This type of claim is informally known as “palimony,” a combination of the words “pal” and “alimony.” The case is also notable for the defendant’s alleged claim that he is unable to obtain a divorce.

The plaintiff claims that she is entitled to $2 million in compensation. The 67-year-old plaintiff was reportedly involved in a relationship with the defendant, an 88-year-old retired media executive, for about six years. During that time, she claims that she performed various business and personal services for him, including promoting a memoir he wrote and investigating his wife in search of evidence he could use in their divorce proceeding.

Throughout the relationship, the defendant resided with his wife. He allegedly claimed that his wife refused to agree to a divorce, telling the plaintiff that his wife said she would “see them bury you six feet under before I grant you a divorce.” New York does not actually require both spouses’ consent in a divorce case. A court may grant a divorce if one spouse states, under oath, that the marital relationship “has broken down irretrievably for a period of at least six months,” although the court must also resolve issues like equitable distribution of marital property. A refusal to “grant” a divorce might just mean a refusal to cooperate in this legal process.

March 24, 2015

Husband Seeks Summary Judgment in New York Divorce Case; Appellate Court Explains Why He Cannot Do That

by Ingrid Gherman

Photo Credit: Tero Vesalainen / Shutterstock.com

A New York appellate court recently considered three appeals brought by the husband/plaintiff while his divorce case, Trbovich v. Trbovich, was still pending in the Supreme Court of Erie County. Each appeal arose from a different order, and the appellate court dealt with each one in separate orders (“Trbovich I,” “Trbovich II,” and “Trbovich III”). The court vacated an order awarding temporary maintenance to the wife because of a pre-nuptial agreement, but it affirmed an order denying summary judgment on the divorce itself. The husband had filed a sworn statement establishing the basis for a “no-fault” divorce, but the court held that state law requires the parties to address additional issues before a divorce may be granted.

The husband initiated the divorce proceeding, and filed a sworn statement that his relationship with the wife had “broken down irretrievably for a period of at least six months,” as required by § 170(7) of the New York Domestic Relations Law. In a preliminary order, the Supreme Court ordered the husband to pay temporary maintenance to the wife in the form of weekly payments for general support and to cover housing expenses.

The husband filed motions seeking summary judgment on the divorce and asking the court to vacate the temporary maintenance award. The court denied these motions, but granted the wife’s motion for over $56,000 in attorney’s fees. It also directed the husband to comply with various discovery requests from the wife.